The ASEAN Charter from the Law of Treaties’ Perspective

“[T]he constituent instruments of international organizations are also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals.”[1]

 

It was not until its fortieth anniversary when ASEAN was formally transformed into an international organisation by the Charter of the Association of Southeast Asian Nations – also known as the ASEAN Charter. Concluded in November 2007 and entered into force less than a month afterward, the ASEAN Charter serves as the constituent instrument of ASEAN as an intergovernmental organisation, through Article 3, giving it the necessary international legal personality. It also “codifies ASEAN norms, rules and values; sets clear targets for ASEAN; and presents accountability and compliance.”[2]

The idea of creating a charter arose into talks at a time when it was fairly a convenient group of Southeast Asian states. Until the initiative emerged, ASEAN had always relied greatly upon the Bangkok Declaration of 1967 and had managed to preserve peace and cooperation through resilient efforts of consultation and consensus, which approaches are embodied as part of ASEAN’s characteristics to the present day. Admittedly, taking a step forward to formalise ASEAN was a huge step for the regional grouping to realise the goals its member states have in common.

As the constituent instrument, the ASEAN Charter’s role is pivotal in serving as the fundamental rules of the game in the region. It sets, among others, the mutual aims of the organisation to be understood and referred upon by ASEAN countries in carrying out their activities as state parties to it. Constitutions are usually assumed at the beginning to be applicable over an indefinite amount of time, hence the more ‘general’ tone commonly found in such documents – intended to give room for developments in the future. However, several have mentioned, including the ASEAN Secretary-General Le Luong Minh, that a review for the ASEAN Charter – mandated in its Article 50 – is ‘long overdue’.[3] Concerns have been raised on how improvements to it could be made, including from the viewpoint of the Philippines as the current ASEAN Chair.[4] In this case, the ASEAN Charter may or may not have a few things to talk about, one of them are issues viewed through the lens of the law of treaties. International law recognises the Vienna Convention on the Law of Treaties (VCLT) that entered into force in 1969. The ASEAN Charter was concluded many years after VCLT; ergo, the rules in VCLT apply to the ASEAN Charter as a binding international set of rules rather than customary international law. VCLT, which governs international agreements concluded by states, also applies to constituent instruments of international organisations, as well as any treaties adopted within such organisations.[5]This article will briefly discuss several possible issues member states may have upon the ASEAN Charter: interpretation, reservation and declaration, as well as withdrawal and termination.

 

TREATY INTERPRETATION: Giving the Words a ‘New’ Meaning

Treaties can get confusing to a certain extent, as all legal documents naturally do. It is not an easy task to translate the intentions of numerous state parties taking part in the making of one. Language development plays its part – some words now may mean slightly different than at the time such word was used in the treaty. More importantly, what a state’s priorities were at the time of a treaty’s conclusion will most likely be in contrast with the direction of such state’s current administration, influenced by numerous factors of national interests.

The ASEAN Charter, however, is not just another international treaty. As a constituent instrument, highly careful measures are to be taken when it is about to be interpreted. The initial vision and aims of ASEAN must be preserved in order to avoid misunderstanding of what ASEAN was initially intended to become.

VCLT envisages a general rule of interpretation – that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”[6]As a general rule, this specific clause is inseparable and therefore explains the obligation to look into the treaty as a whole, inclusive of its preparatory works and annexes, instead of only looking at a single document of treaty.

Correspondingly, interpreting a constituent instrument becomes a more complicated job to be done. Constituent instruments, as how the International Court of Justice puts it:

“[…]can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional; the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret these constituent treaties.[7]

The ASEAN Charter is one ambiguous treaty – it entertains a fairly vague means for the interpretation of itself. Article 25 of the Charter regulates that “[w]here not otherwise specifically provided, appropriate dispute settlement mechanisms, including arbitration, shall be established for disputes which concern the interpretation or application of this Charter and other ASEAN instruments.” Interpretations on its own does not need an underlying dispute to be issued, and member states are normally allowed to ask for the treaty to be interpreted at any given time. Nonetheless, even when a dispute arises, establishing a dispute settlement mechanism, reasonably, requires a long period of time, especially in ASEAN where everything is subject to unanimous consensus – let alone the time needed to actually settle the dispute. Therefore ASEAN may consider the option of issuing advisory opinions as a more effective and efficient procedure for the ASEAN Charter’s interpretation, although the Charter provides no such means of advisory opinion issuance – or at least not explicitly. This practice of interpretation is similar to what state parties of the United Nations Convention on the Law of the Sea (UNCLOS) have to go through. Advisory opinions issued by the International Tribunal on the Law of the Sea (ITLOS) are often sought by the Convention’s state parties for a further explanation on a part of the Convention, regardless of what the advisory opinion is used for. This stops the Tribunal from having to ‘establish appropriate dispute settlement mechanisms’, as how the ASEAN Charter puts it, so that the Tribunal can work straight on the requested subject matter for interpretation.

The lack of court existence can indeed be a burden for ASEAN should it wish to issue advisory opinions, as courts are found to be the common issuers of advisory opinions, as evident in ITLOS and the International Court of Justice. Such practice is understandable as treaties are legal documents and judges are the ones most credible to give out opinions on them; however, ASEAN may push its future agenda on discussing ASEAN Charter issues, should there be any, at the ASEAN Summit. If we look carefully through the articles, quite a number of important roles are held by the ASEAN Summit, namely decision-making powers and as the final means of dispute settlement. It is possible that inferring to the ASEAN Summit for an official interpretation document on the ASEAN Charter may be a way out of situations requiring further explanation of a clause or two from the Charter. However a question remains: can the limited amount of time in ASEAN Summits address all the issues adequately?

 

RESERVATION AND DECLARATION: We Want In, But…

A treaty generally contains a lot of clauses covering a broad range of areas, and states may not agree to some of them even though they approve of the treaty’s general aim. Law of treaty recognises the practice of reservation and its similar (but different) form in interpretative declaration. The difference of the two lies within the intention of making them – where reservations intend to “exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”, and interpretative declaration simply provide a state’s understanding (or its own take of perspective) on a usually general clause. The ASEAN Charter does not have any reservation clause, but this fact does not necessarily mean that the Charter prohibits any reservation and declaration.

Article 20(3) of VCLT provides that a reservation to a constituent instrument will require the acceptance of the competent organ of the organisation – in this case, the ASEAN Summit. Although the ASEAN Charter is indeed lacking of explicit consent of member states on reservation that should have been agreed prior to the Charter’s entry into force, circumstances at the time of the Charter’s conclusion must be taken into account. It is possible that due to the peaceful nature of the organisation and the generally neutral views its member states decided to take, member states might not sense any urgency to regulate such reservation at that time, but it is also possible that some member states may have the urgency to do so now or in the future. Situations in which a state decides to issue its declaration to a certain treaty after ratifying it are considered as ‘late’ reservations, which is applicable to all ten member states of ASEAN. This issue is not mentioned at all in the VCLT, but no clear prohibition of it is found as well. Instead, the practices done by United Nations show that such reservation will only need to be circulated for approximately ninety days before the Secretary-General puts the reservation document into deposit, shall there be no objections raised upon it and no explicit prohibition of reservation evident in the treaty itself.[8] Potential new members of an international organisations, such as East Timor to ASEAN, will then be subject to more general terms of reservations, given that they provide their documents of reservation before their accession to the constituent instrument is formalised. Declarations, on the other hand, lie in between reservation and interpretation. Just how a similar rule with reservation applies to ‘late’ declarations, potential new members are benefited from the possibility to declare an interpretative statement toward a clause in the Charter.

One thing to remember from making reservations is that it modifies legal rights and obligations a member state has out of the treaty. The ASEAN Charter, among others, regulates significant issues such as the roles of its organs and dispute settlement mechanisms. The ASEAN Summit, as well as all member states, must act in a thoughtful manner whenever a member state issues a reservation on an indispensable matter, that will only cause difficulty to the organisation’s expected smooth sailing in the future.

 

WITHDRAWAL AND TERMINATION: Worst Case Scenarios

The dynamics of an international organisation is always ever-changing. Understandably, what the state parties desire at the time of drafting or signing can be different with what they want at the moment, due to numerous factors. The direction of an organisation can also drift away from what the members once agreed together, as what is written in their constituent instrument. One then may question: what does ASEAN do when a member state wants out?

Law of treaties normally does not allow for a state party to an international treaty to withdraw from it, out of respect to the pactasuntservanda(‘agreements must be kept’) principle as embodied in VCLT.[9]The absence of a withdrawal clause in the Charter of the United Nations was planned carefully to avoid states abusing such clause as a threat to peace and security of the global community – and the organisation simply cannot afford for that to happen. Similarly, withdrawal from ASEAN is also not made possible – or at least easy – through the ASEAN Charter, as the treaty provides no clause on it. As withdrawal from a constituent instrument would mean membership withdrawal, the ASEAN Charter then challenges the valid reason when a state wants to call it quits. However, VCLT regulates that a treaty can be terminated or subject to a state party’s withdrawal when there is a fundamental change of circumstances unforeseen by the state parties at the time of its making, under the principle of rebus sic stantibus(‘things thus standing’). The rapid advancement of member states’ endeavours in the international community may give rise to issues considered as fundamental change, particularly when political actions contradict, thus increasing the (still) slight possibility of future withdrawals.

The ASEAN Charter is indeed silent on how it feels about member states’ possibility of withdrawal, but VCLT is not – Article 56 explains that such silence means that the treaty in concern is not subject to member states’ withdrawal, unless “(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.”

An even worse possibility that can happen to the ASEAN Charter is termination, where – to put it bluntly – ASEAN is about to be dismissed or disbanded. VCLT provides that termination, as well as withdrawal of a state party, “may take place: (a) in conformity with the provisions of the treaty; or(b) at any time by consent of all the parties after consultation with the other contracting States.” Again, the important role of the ASEAN Summit as the highest governing body of ASEAN is evident here, but in a possibly more crucial way: terminations and withdrawals affect not only the state parties, but also other contracting states who have made commitments with either the organisation or a state in its capacity as a member. Disputes may arise, and the ASEAN Summit may be most overwhelmed – even more than ever.

 

 

CONCLUSION

The issues that the ASEAN Charter has, with regards to the law of treaty and the rights member states may have out of it, may for now seem less likely to drift the regional organisation apart in a way that would put its very existence under threat. The continually added benefits of the ASEAN Economic Community that is currently undergoing its second year keeps every member state ahead of its own game, making use of the fairly cooperative region to satisfy their interests. However, the absence of a strong, reliable mechanism to address issues with the ASEAN Charter must be taken care of, in case one of the worst possible scenarios takes place in the future.

The ASEAN Summit as the supreme policy-making body of ASEAN is mandated by the Charter with central responsibilities to respond to various issues, including on the Charter itself. Despite ASEAN Summits being held twice annually as mandated by the Charter, to cram numerous topics to be covered in such a tight schedule can result in little to no progress yielded. As discussed above, delegable matters such as advisory opinion shall come as an option for ASEAN to slowly decrease the workload at the ASEAN Summit and increase the effectiveness of their results instead.

As constituent instruments of an organisation are essential for the integrity of itself, any issues or changes about to be made upon the ASEAN Charter needs to be done wisely. Despite a dedicated chapter for it, the amendment rule in the ASEAN Charter would ideally need amending – much of an inception itself – as it is not written as comprehensive as it probably should have been, considering its constituent status. The UN puts forward a noteworthy example on this, as evident in Article 108 of its Charter that amendments enter into force only after “they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council”. Bearing in mind the importance of member states’ deliberate consultation in decision-making processes, sensitive issues raised against the ASEAN Charter may never come to a resolution if no strict rules are available for recourse. This hindrance, by all means, must be avoided, in order to respect what ASEAN has always aimed for: reaching “the collective will of the nations of Southeast Asia to bind themselves together in friendship and cooperation and, through joint efforts and sacrifices, secure for their peoples and for posterity the blessings of peace, freedom and prosperity.”[10]



[1]Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) 1996 <http://www.icj-cij.org/docket/files/93/7407.pdf> accessed 29 March 2017 [19]

[2]ASEAN, ‘ASEAN Charter’ <http://asean.org/asean/asean-charter/> accessed 29 March 2017

[3] Tan Qiuyi, ‘ASEAN Charter under review: ASEAN Secretary-General’ (Channel NewsAsia, 7 September 2016) <http://www.channelnewsasia.com/news/asiapacific/asean-charter-under-review-asean-secretary-general/3108772.html> accessed 11 April 2017

[4]Albert Wai, ‘Manila will be a neutral, honest Asean chair: Philippine diplomat’ (Today Online, 24 November 2016) <http://www.todayonline.com/world/asia/manila-will-be-neutral-honest-asean-chair-philippine-diplomat> accessed 11 April 2017

[5]Vienna Convention on the Law of Treaties 1969 (“VCLT”), art 5

[6]VCLT art 31(1)

[7]Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) 1996 <http://www.icj-cij.org/docket/files/93/7407.pdf> accessed 29 March 2017 [19]

[8]Anthony Aust, Modern Treaty Law and Practice (2nd edn, Cambridge University Press 2007) 158-159

[9]VCLT art 26

[10]Bangkok Declaration

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